SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION
THE TRUSTEES OF THE CORCORAN
GALLERY OF ART,
Petitioners,

v.

Civil Action No. 2014 CA 003745 B
Judge Robert D. Okun
THE DISTRICT OF COLUMBIA,
Respondent.



SAVE THE CORCORANS MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO
PETITIONERS MOTION FOR ENTRY OF PROPOSED ORDER
Intervenors Sebastien Arbona, Robin David Bell, Reuben Samuel Breslar, Carolyn Campbell,
Lorenzo Cardim, Avijit Gupta, Caroline Lacey, Patrick Masterson, Jayme McLellan, Natalie
Fulgencio Perez, Thomas Robert Pullin, Elizabeth Punsalan, Linda Crocker Simmons, and Save The
Corcoran (collectively, STC) respectfully request that this Court deny Petitioners motion for
entry of an order granting cy pres.
1

INTRODUCTION
The stakes for the Corcoran Gallery and School could not be higher or more existential. No
museum and school with such tradition, history, and meaning has ever consciously willed itself into
oblivion. Eric Gibson, Clueless at the Corcoran, Wall St. J., Feb. 24, 2014 (Ex. A). But that is
precisely what the Trustees seek permission from the Court to effectuate. The Trustees seek this
unprecedented relief on an evidentiary record that does not remotely substantiate the findings they
ask the Court to enter in their motion for entry of a proposed order. Indeed, given the sweeping and


1
STC has conferred with counsel from the D.C. Attorney Generals office and counsel for the Corcoran Trustees.
The D.C. Attorney General takes no position on the motion for leave or opposition, while the Trustees oppose
both.



2

historic relief they seek, one would expect to see at a minimum a complete set of deal documents,
fully audited financial statements going back a meaningful period of time, detailed breakdowns of the
promised renovations GW purportedly will undertake to the Flagg building, and a reasoned
discussion of the costs and benefits of accreditation with the AAMD, among other crucial points.
The Trustees submission, however, is either thin or non-existenton every relevant point.
The Trustees have not met their burden of proving that the Corcoran Trust has become impracticable.
Nor have they established that the proposed dissolution is as close as possible to the original terms
and purposes of that Trust, and that the Corcoran cannot surviveand thriveas an independent
institution.
As to the Corcorans financial circumstances, the Trustees have submitted one pagea
summary of financial data that reports results in a distorted manner. The Trustees have not submitted
complete deal agreements to this Court; their filing is missing virtually all of the key exhibits that this
Court would necessarily need to review. Nor have the Trustees submitted those documents to the
Court, even though Save the Corcoran has asked them to do so. See Ex. B.
The Trustees submission likewise contains no documentation of the amounts purportedly
necessary to refurbish the Gallery, or any documents demonstrating what GW will do to refurbish the
Gallery and when, even though this is set out as a key reason for the cy pres (Pet. 45), and the Court
is asked to enter an order making a direct factual finding on this issue. See Proposed Order at 2.
The Trustees also make assertions about the consequences of deaccessioning art and AAM
and AAMD accreditation, without even mentioning that the Boardwhich devotes much of its
Petition to the importance of maintaining reputation in the arts community (Pet. 17)appointed
Fred Bollerer, a financial consultant, as Director of the Corcoran from 2010 to 2013. Mr. Bollerer
was never a member of the American Association of Museum Directors or eligible to be one. Nor do
the Trustees ever mention that according to former Director Paul Greenhalgh, the Corcoran had been
reprimanded by AAMD in the early 2000s, yet the museum maintained its reputation and



3

performance. See Ex. C. The Trustees submission omits these facts, which contextualize the
Boards over-stated doomsday treatment of AAMD accreditation.
Similarly, while the Board intones against the risk of being unable to hire qualified staff
(Pet. 17), they do not mention that the Trustees hired Board Chairman Harry Hoppers Alexandria,
Virginia neighborliterally, his neighborLauren Garcia (now Stack) to be Chief Operating
Officer in 2011, notwithstanding her virtually complete lack of experience in the art world. Thus, the
very Board that handed the keys to this institution to individuals who knew nothing of the arts world
now says that AAMD accreditation is the sine qua non of preserving the Corcorans reputation and
its ability to hire qualified staff.
Perhaps most remarkably, as a consequence of filing the motion to intervene, and the
outpouring of support and information STC recently has received from relevant stakeholders, it has
come to light that the Board has violated the very promises it made to this Court that it would
preserve the status quo pending approval of the cy pres relief sought. The Petition expressly assures
the Court that pending closing of the transaction the Corcoran will operate consistent with the
current [deed] restrictions, Pet. 47, but the Trusteesin unmistakable breach of their fiduciary
dutieshave taken steps over the last several months that directly violate the Trust. First, the Board
obligated itself in its Agreement with GW not to retain any new faculty (see Asset Contribution
Agreement 7.5(i)); and now it has come to light that on April 16 it gave 90-day notices of
termination to all staff members, and in June gave 60-day notices of termination to faculty. See Ex.
D. More than 150 employees will lose their jobs on August 15. See Rebecca Cooper, More than 150
Corcoran Employees Face Layoffs As Mergers Loom, Wash. Bus. J., July 15, 2014. These
termination notices were all delivered before the Trustees had received any permission from this
Court to proceed with cy pres. The Trustees also have wound down fundraising and board donations.
The Board has apparently operated for months to wind down the institution on the theory that when it
did come to the Court, the Court would conclude that no other choice is available. Not so.



4

Save the Corcoran believes that the Corcoran can and should remain independent. The
problems at the Corcoran are not the iconic Flagg building or its location across the street from the
White House, or competition from other federally funded institutions. The problem has beenand
remainsa failure of leadership. Sadly, these Trustees long ago stopped believing that the
institution they are charged with protecting could survive, yet they have stubbornly refused to bring
aboard new Board members who have energy, resources, connection, vision, and an abiding belief
that the greatest triumph in difficult circumstances is to honor and preserve history, not destroy it.
Save the Corcoran has been working with two leaders who are willing to assist the Court in
understanding the alternatives to the dissolution proposed by the Trustees: Wayne Reynolds, former
Chairman of the Board at Fords Theatre (who in November 2012 was invited to be Chairman of the
Trustees, who rescinded the invitation when Mr. Reynolds insisted on maintaining the Corcorans
independence); and Tony Podesta, a significant donor to the Corcoran and collector of American art,
and one of the most prominent fundraisers and respected counselors in Washington, D.C. The
credibility, track record, and civic standing of Mr. Reynolds and Mr. Podesta cannot be questioned,
and both can aid the Court in understanding how an independent Corcoran can be maintained.
Thus, it is demonstrable that the sweeping relief requested by the Trustees cannot be
approved on the current record. STC opposes entry of the proposed order pending an evidentiary
hearing, and, upon being permitted to intervene, requests an expedited evidentiary hearing so that the
parties may provide this Court the factual material it needs to evaluate in an orderly fashion the
extraordinary relief requested. This includes an examination and analysis of essential financial
information (consisting of 10 years of audited financial statements with auditors notes provided to
the Court and STC); an evidentiary hearing where the Court can hear presentations on the Corcorans
financial position and alternatives regarding the Corcorans future viability; and an order preserving
the status quo so that the Trustees cannot continue to dismantle the Trust. Justice must be done in
this caseand justice also must be seen to have been done.



5

ARGUMENT
Under the D.C. Code, when a settlors charitable purpose has become impracticable or
impossible, a court may apply cy pres only to modify . . . [a] trust . . . in a manner consistent
with the settlors charitable purposes. D.C. Code 19-1304.13, 13(c) (emphasis added). This is an
extraordinary equitable remedy that courts do not undertake lightly. See, e.g., Conn. Coll. v. United
States, 276 F.2d 491, 497, 107 U.S. App. D.C. 245, 250-51 (D.C. Cir. 1960).
2

Accordingly, the moving party must show, by clear and convincing evidence, that: (1) the
trust has become impracticable; and (2) that its proposed solution is as close as possible to the
original terms of the trust. See, e.g., Barnes Found. (Barnes I), 2004 WL 1960204, at *11 (Pa.
Com. Pl. Jan. 29, 2004). Courts commonly deny cy pres relief where the moving party has failed to
provide sufficient evidence under either prong. See, e.g., Conn. Coll., 276 F.2d at 497, 499, 107 U.S.
App. D.C. at 250-51, 253; Museum of Fine Arts v. Beland, 735 N.E.2d 1248, 1252 (Mass. 2000); In
re Fisk Univ., 2007 WL 4913166, *9 (Tenn. Ch. June 12, 2007), vacated on other grounds, Georgia
OKeeffe Found. v. Fisk Univ., 312 S.W.3d 1 (Tenn. Ct. App. 2009). Significantly, cy pres relief
also is unavailable where a trustees own deliberate act has prevented the fulfillment of the trustors
purpose. Conn. Coll., 276 F.2d at 497, 107 U.S. App. D.C. at 251.
The Trustees request for cy pres relief falls far short of this demanding standard for two
reasons. First, the Trustees have failed to establish that the Trust has become impracticable. Second,
the Trustees have failed to establish that their proposed solution is as close as possible to the original
terms of the Trust.


2
Although the statutory remedy of cy pres is of relatively recent vintage, D.C. Code 19-1304 merely codified
prior doctrine, changing only the presumption against general charitable intent that courts had previously
applied. See Scott & Ascher on Trusts 2697-2700 (5th ed. 2009).



6

I. CY PRES RELIEF IS NOT AVAILABLE BECAUSE THE TRUSTEES HAVE NOT
PROVIDED SUFFICIENT EVIDENCE THAT THE TRUST HAS BECOME
IMPRACTICABLE.
The Trustees attempted showing of impracticability falls far short of their evidentiary
burden. Courts normally require hard evidence of impracticability, adduced at trial or in an
evidentiary hearing.
3
Here, by contrast, the Trustees ask the Court to make factual findings in the
proposed order for which evidence is wholly lacking.
A. The Trustees Have Not Established That The Financial Circumstances Render
The Trusts Purposes Impracticable.
The Corcoran Trust is now worth billions. See David Montgomery, Corcoran Gallery of Art
and College to Split Apart, Partnering with National Gallery, GWU. Wash. Post, Feb. 19, 2014
(The Corcorans art [is] worth an estimated $2 billion . . .). The Corcoran currently has at least $43
million in cash (see Asset Contribution Agreement, 1.1, 2.1(d)), as well as the Flagg Building
(assessed by the District at more than $150 million)
4
and annual tuition revenues of $13-$14 million.
See Ex. E, at 9. In its most recent annual report, the Corcoran reported net assets of $73.5 million.
Id. From 2001 to 2013, the Corcoran has operated at a profit nearly every other year, with an
average annual deficit of about $1 million. Infra 7 n.4. To cover that gap, historically the Corcoran
has relied on fundraisingwhich consistently provided more than $5 million annually until only
recently. See Intervenors Compl. 45. In 2010, a financial officer of the Corcoran proclaimed


3
See, e.g., In re Fisk Univ., 392 S.W.3d 582, 597 (Tenn. Ct. App.) (partially affirming cy pres award after trial);
Barnes Found. (Barnes II), 2004 WL 2903655 (Pa. Com. Pl. Dec. 13, 2004) (granting cy pres relief after
multiple evidentiary hearings); cf. Cleveland Museum of Art v. Keybank Natl Assn, No. 2009 ADV 0150224
(Comm. Pl. Ohio Oct. 8, 2009) (awarding deviation after three days of hearing evidence at trial). Absent such
an adversarial process for weighing the evidence, courts have denied cy pres relief. See Beland, 735 N.E.2d at
1252 (denying cy pres relief where evidentiary record resulting from filings without hearings or trial did not
show that alternatives were futile).

4
The Randall Street Property (see Asset Contribution Agreement 1.1) was assessed at over $27 million in
2014. On information and belief, the 2013 assessment of the Flagg Building by the District of Columbia was
$126 million.



7

the Colleges financial health as a self-sustaining institution. Letter of Ariana Ortega to D.C.
Attorney General, July 11, 2014.
Financial Condition
To support their claim of financial impossibility, the Trustees have not filed any audited
financial statements (complete with auditors notes) documenting their financial position. Instead,
they have submitted a single spreadsheet that purports to demonstrate that the Trust is impossible
to administer. But the Trustees evidence demonstrates that the trust is viable or, at worst, merely
inconvenientnot impracticableto administer. See Conn. Coll., 276 F.2d at 497, 107 U.S. App.
D.C. at 251 (holding that impracticability must stem from changed conditions beyond the control
of the trustees, not a policy desire to administer the trusts assets in another way).
Far from showing a chronic deficit, Cy Pres Mem. at 10, as the Trustees maintain, the
spreadsheet demonstrates that in 8 of 13 years the change in net assets from operations was a net
positivefor a net increase of $31.2 million in assets since 2001.
5
The Trustees add two columns to
this spreadsheet to back out the impact of investment activity, but investment income is a key way in
which the Corcoran and other museums generate income from year-to-year.
Indeed, based on the Trustees own papers in this Court, to say that the Trust has become
impossible to administer is patently misleading. The deal documents contemplate that the
Corcoran will contribute at least $43 million in cashincluding the College Transfer Amount of
at least $8 million (Asset Contribution Agreement 2.1(d)); a Renovation Transfer Amount of at least


5
Row 5 of the table in the Trustees Exhibit 3 indicates whether the Corcoran ran a deficit or a surplus in a
particular year. In 2001, 2002, 2004, 2006, 2007, 2010, 2012, and 2013, the Corcoran had a surplus. Id. These
numbers include other changeswhich the Trustees do not define. Id. Even when those other changes are
removed from the equation (Row 3), the Corcoran still saw a net surplus just under half of the time: in 2002,
2004, 2006, 2007, 2008, and 2010. Id. Over that period, the Corcoran lost only about $1 million per year on
average (with the larger losses occurring after the Board announced its intention to explore selling the building,
move to Virginia or another location, or merge with the UMD).
For an institution with $2 billion of art, and nearly $200 million in other assets, this is not a level of deficit to
warrant the equivalent of a complete reorganization of the institutions assets.



8

$35 million (id. 1.1); and the Randall Street Property (id.), which was assessed at over $27 million in
2014. This figure excludes over $20 million in revenue that the College will expect to receive in the
upcoming year
6
and ignores the value of the Flagg Building. Given that the Corcoran expects
renovations to cost about $70 million (Stack Decl. 7), there is no apparent reason why the Corcoran
could not simply apply the resources it is ready to give to GW to fully fund the renovations today.
The bottom line is that there is no reliable way to assess the financial performance of the
Corcoran without looking at audited financial statements, complete with auditors notes. The
Corcoran should have these financial statements through Fiscal Year ended June 2013, and they
should be filed with the Court and shared with STC. Without this information, this Court cannot
adequately evaluate statements such as the Trustees assertion that they would need to . . . invade
the acquisition fund to maintain operations for the coming year. Cy Pres Mem. at 11.
7

Refurbishing the Gallery
As to the estimates for the renovations that are needed to restore the Corcorans historic
building, the evidentiary record is equally thin. There is no evidence whatsoever to justify the
claimed $70-100 million in renovation costs. The Trustees have not provided verified estimates for
these costs. They also did not include the relevant exhibit to the GW deal document explaining what
obligations GW is undertaking immediately, using the Corcorans cash. See Asset Contribution
Agreement, Ex. A. A GW official already has publicly disputed the Corcorans estimates.
Intervenors Compl. 42 (quoting David Montgomery, Corcoran Gallery of Art and College to Split
Apart, Partnering with National Gallery, GWU, Wash. Post, Feb. 19, 2014)). Despite this lack of


6
Attached as Exhibit E is the Corcorans 990 form for the 2012 fiscal year. For that year, the College provided
$20.5 million in revenues. See id. at 9.

7
Notably, the deal documents only grant GW and the National Gallery vague and limited audit rights. The deal
provides for limited access to the Corcorans books and records (beyond an evaluation of the Transition
Budget). Indeed, GW is specifically barred under the agreements from seeking the books and records. Asset
Contribution Agreement, at 5.9. This is a very peculiar deal termthe need for such secrecy underscores the
need for this Court to bring sunlight and a clear-eyed examination to this process.



9

foundation, the Trustees ask this Court to approve cy pres relief that would send at least $43 million
of the Corcorans assets to GW to pay for renovations. There has been no showing that the Corcoran
cannot use those same assets to pay for the renovations itself.
Fundraising
Nor do the Trustees provide an adequate explanation of why fundraising could not make the
Trust practicable. The Trustees have unaccountably stalled fundraising for years, while cutting
professional fundraising and development staff. The Trustees have pushed the staff into turmoil,
with the Director giving on the record quotes that a malaise had set in at the Board level because
the leadership could not provide a vision to excite donors. Jacqueline Trescott, As Corcoran Reels,
Washingtons Other Private Art Museums Hold Their Own, Wash. Post, June 29, 2012. Indeed, the
Corcoran reduced its experienced development staff and hired Alexandria resident Mimi Carter to
manage development, yet she had no previous professional fundraising experience. Under her
tenure, fundraising declined considerably, with the Corcoran spending $3.7 million to solicit just $4.0
million in contributions in 2012-13. See Ex. E, at 9. At the same time, she attempted to hire her
husband to re-do the Corcorans website for $30,000, in a deal that the husband-and-wife team
presented to the Corcoran as an arms-length arrangement. See Ex. F, at 8. Exhibit J shows the steep
decline in both fundraising and sharp increase in deficits under the current Board.
The Trustees in their petition contend that their revenue problems are due to factors beyond
their control. But that claim is baselessChairman Hopper was more directly on point when he
attributed the decline in fundraising to lack of vision and board malaise. For example, the Trustees
maintain that the Corcorans dependence on admission fees has been deeply undercut, as has been
seen in many galleries across the country because of competition from federally-funded galleries
(Cy Pres Mem. at 4), and a location away from a major tourism nexus on the other side of the
White House (Petition 19). Yet competition alone cannot explain why Corcoran attendance figures
over the past decade have plummeted nearly 79% . See Intervenors Compl. 47. And it is not



10

credible to claim that the Corcorans location next to the White House is somehow a disadvantaged
location. Indeed, other private museumssuch as the Phillips Collection, the Kreeger Museum, and
the International Spy Museumhave flourished despite facing the exact same competition and being
located even further away from the major tourism nexus next to the Mall.
8

Likewise, the Trustees cannot possibly blame a lack[] [of] a substantial base of local, very
wealthy donors for their lack of a fundraising program. See Intervenors Compl. 45. In any case,
the Trustees characterization does not square with the experience of the National Gallery, which
recently raised $30 million for an expansion; Fords Theatre, which similarly raised $54 million; or
even the Corcorans own experience in raising over $110 million for a new wing just ten years ago.
Id. 46.
Finally, the Trustees own words demonstrate that the Corcorans true problems flow from a
lack of leadership. In November 2012, the Board asked Wayne Reynolds to become Chairman of the
Board of the Trustees. In inviting Mr. Reynolds to the Board, the Corcorans lawyer explained the
current state of affairs at the Corcoran, describing as key assets the Corcoran brand and history,
Iconic building and its location, Collection, Accredited Art College and its reputation,
Successfully engaging with the Washington community, e.g., programs with DC public schools, a
presence at THEARC in Ward 8. Ex. K.
But the Trustees also said the following crucial elements were missing:
Missing:
Visionary and disciplined leadership

Fundraising, both from Trustee and Development efforts

The communication also candidly stated that the Trustees know they need new blood to make it
work. Id. Mr. Reynolds met with several board members, but made clear that he would insist upon


8
On the success of the Philips Collection as compared to the Corcoran, see Kriston Capps, The Final Failure of
the Corcoran Gallery of Art, Wash. City Paper, Feb. 26, 2014.



11

the resignation of several board members before he would agree to serve as Chairman. He also
strongly disagreed that the Corcoran should pursue dissolution into GW or NGA and that it could
easily be revitalized with new leadership. The offer was later rescinded.
9

For all of these reasons, this Court should be deeply skeptical of the Trustees
unsubstantiated statement that they would need to invade the acquisition fund to maintain operations
for the coming academic year. Pet. 45. The Corcoran can manage the $28 million cost of
operations at the Gallery and College for another year, given that they were prepared to hand over to
GW over $43 million, and they can expect another $15 million in tuition revenues. Indeed, the
Trustees have been in this situation before: the original deal with the University of Maryland was
supposed to have been completed by Fall, 2013; but when the deal did not go through, the Gallery
and College still operated for another year.
B. The Trustees Provide No Support For The Requested Finding That Disastrous
Consequences Would Occur If Relief Is Not Granted.
Assuredly seeking to sow doubt in this Courts mind that no alternative is left, the Trustees
present a parade of horribles regarding what could happen to the Corcoran if relief is not granted, but
they do not rigorously evaluate either those consequences or the viability of alternatives. In similar
circumstances, where there has been no showing that other alternatives would be impracticable,
courts have denied cy pres relief. See, e.g., Beland, 735 N.E.2d at 1252; cf. OKeeffe Found., 312
S.W.3d at 19-20 (remanding for trial to determine whether trust has become impracticable).
There is no basis for this Court to make the requested fact-finding that the strategic,
supervised, and limited de-accessioning of portions of the collection would result in the loss of [the
Corcorans] accreditation as a museum and would result in significant harm to the institution.


9
The Trustees hired Lord Consulting, which pointedly observed that There has been no serious
collector/advocate for American Historical Art on The Board of Trustees or the Collections Committee for 20
years. Similarly, the Lord Report identified as a key recommendation that The Board of Trustees must be
comprised of members who have a vested interest in the Corcorans collection. Additionally, the members must
have sufficient wealth to support the institution with regular donations of an adequate size.



12

Proposed Order Granting Cy Prs, at 2. The only evidence the Trustees provide for this finding is
assertions in the Petition. Petition 17. The Petition carefully alleges that a failure to adhere to
AAM guidelines would only likely result in loss of accreditation or likely substantially undermine
[the Corcorans] ability to recruit and retain qualified curatorial and other key museum staff.
Petition 17 (emphases added). On the Trustees own evidence, therefore, this Court cannot make a
definitive finding about the consequences of using the proceeds of deaccessioning for operations for
a short-term stabilization program.
Moreover, the very deal negotiated by the Trustees contemplates that the proceeds from the
sale of art will go to funding operations. The Trustees must provide at least $35 million in cash to
GW as part of the deal. Asset Contribution Agreement, 1.1 (Renovation Transfer Amount.
Some or all of those funds are proceeds from the sale of a Persian carpet for $33.8 million
10
rugs and
monies expected from the Clark estate. Corcoran officials have admitted that the Corcoran will use
endowment funds and proceeds from a previous sale of precious rugs to help finance the new
arrangement with GW. David Montgomery, Corcoran Gallery, GWU & National Gallery Close
Deal to Transform Corcoran, Wash. Post, May 15, 2014. In other words, the Corcoran has improved
its cash position through deaccessioning, but instead of simply admitting it and using those proceeds
to survive, it is creating a fund of monies that will be shifted over to GW to help GW renovate the
building. This does not make sense.
Furthermore, STC believes that a review of the financial statements ending June 2014 will
demonstrate that the Trustees have already used deaccession funds for operating expenses, while
simply making pledges to repay those funds. The Petition effectively acknowledges that the
Corcoran has used restricted funds in this manner: the Trustees borrowed amounts from
[acquisition] accounts, but with the identification of specific accrued future revenues that would


10
Katherine Boyle, Corcorans Clark Sickle-Leaf Carpet Breaks World Record at Sothebys Auction, Wash. Post,
June 5, 2013.



13

repay the borrowing. Pet. 44. Thus the Board is already engaged in the use of restricted funds to
pay operational costs. Again, the Board is doing this and yet turning all the cash over the GW, rather
than investing in an independent Corcoran. The Trustees do not explain in any convincing fashion
why this use of the funds is the most consistent with the Trust intent.
Furthermore, even in an absolute worst case scenario, the loss of accreditation by the
American Alliance of Museums (AAM) simply would not have the dire consequences predicted by
the Trustees. According to its former Director, the Corcoran ran into serious trouble with the AAM
during the early 2000s, yet retained its world class reputation and remained profitable. Ex. C, at 2-3.
Indeed, only 5% of museums in this country have AAM accreditation at all,
11
while many successful
and highly-regarded museums do not. Corcoran Trustee Kathryn Gleeson sits on the Board of such a
museumthe Hirshhornyet that institution is widely regarded as one of the worlds leading
museums of international modern and contemporary art. Nor is the Hirshhorn alone: the National
Academy Museum, Meijer Gardens, and several museums affiliated with well-regarded educational
institutions all are highly successful institutions that lack AAM accreditation. Indeed, the Trustees
assertions about professional reputation and standing in the art community are impossible to square
with placing a national treasure in the hands of Fred Bollerer when he was notand has never since
become a member of the AAMD. Yet the Trustees did not just hire Mr. Bollerer, they also paid
him the highest salary of any Corcoran directorever, and then hired the Board Chairmans
neighbor as Chief Operating Officer.
Even if the Corcoran did lose its AAM accreditation, moreover, there is no indication that
that loss would be permanent. On information and belief, after losing its accreditation in the early


11
In March 2014, the AAM reported only 779 accredited members. See Statistics, American Alliance of
Museums, http://www.aam-us.org/resources/assessment-programs/accreditation/statistics. By contrast, the
Official Museum Directory lists over 15,000 museums and cultural institutions nationwide. Official Museum
Directory, http://www.officialmuseumdirectory.com/about-the-official-museum-directory.html (last accessed
July 15, 2014).



14

2000s, the Corcoran has since regained it. Museums often only temporarily lose their accreditation
in that way: the Museum of Northern Arizona, for example, lost its accreditation over
deaccessioning but regained it within five years.
12
While it is obviously not desirable to fall out of
the good graces of the AAM, when the very life of an institution is at stake, the issue must be
considered. There are also innovative ways to ensure that this is done in a strategic and thoughtful
manner. See, e.g., Cleveland Museum of Art, No. 2009 ADV 0150224, at 6-7 (permitting museum to
use deaccession funds to fund operations, but restricting use so that primary use of funds was for
further acquisitions); Cleveland Museum of Art v. ONeill, 129 N.E. 2d 669, 672 (Comm. Pl. Ohio
1955) (permitting museum to use deaccession funds to enable expansion). Indeed, there is absolutely
no conceivable state of facts in which W.W. Corcoran would elevate membership in the AAM
(which did not exist in his day) over the utter destruction of the institution he created and nurtured
and sought to maintain in perpetuity. See Cy Pres Mem., Ex. 1 at 4.
While it might be a challenge for a board suffering from fatigue to manage these issues,
whatever temporary difficulties attend to the AAMs position do not amount to impracticability. See
Conn. Coll., 276 F.2d at 499, 107 U.S. App. D.C. at 253 (mere inconvenience in administering a trust
does not amount to impracticability). Indeed, the Trustees chide the Delaware Art Museum for
deaccessioning art to generate funds as part of a short-term stabilization program. Cy Pres Mem. at 4
n.4. But although that museum did lose its AAM accreditation, it will still exist as an independent
institution in 2014, 2015, and beyond. Meanwhile, if the Trustees have their way, the Corcoran will
vanish forever.
C. To the Extent That the Trust Has Become Impracticable, the Trustees Own
Actions Caused That Impracticability.
Even if the Trustees could show that the Trust has become impracticablewhich they
cannotthey still would not merit cy pres relief because their own deliberate act[s] ha[ve]


12
MNA Press Gallery, http://www.musnaz.org/press/press2008.shtml.



15

prevented the fulfillment of the trustors purpose. Conn. Coll., 276 F.2d at 497, 107 U.S. App. D.C.
at 250-51 (discussing cases). There is substantial evidence that, to the extent that the Trust has
become impracticable, the Trustees own mismanagement has caused it. The unanswered questions
on this point are significant.
The Trustees appear to have halted fundraising even as they drew on the endowment in the
expectation of future fundraising (Intervenors Compl. 44-48); expended numerous resources in
pursuit of unlawful actions such as relocating outside of Washington, D.C. (id. 61); hired expensive
consultants whose recommendations were either ignored or were, in any case, unlawful (id. 53);
paid certain employees six-figure salaries despite little to no relevant employment experience (id.
54); and engaged in a series of related-party transactions, such as paying over $30,000 to an
employees husband for a website redesign that has not even been implemented (see Ex. G).
In particular, with regard to fundraising, the Trustees spent millions year after year on
fundraising efforts, only to see fundraising nosedive. For example, in 2012, the Trustees spent $1.6
million on fundraising, only to collect $2.1 million in donations; in 2013, they spent $2.1 million to
solicit $1.8 million (not counting an unsolicited donation of $5 million). Ex. E, at 9. Despite these
enormous expenditures, the Trustees never established a well-functioning development office that
could make effective use of those resourceson the contrary, they promoted to head of fundraising a
friend of Mr. Hopper and Ms. Garcia (now Stack)Mimi Carterwho was also an Alexandria
resident, who had had no non-profit fundraising experience. See Mimi Carter, LinkedIn,
http://www.linkedin.com/in/mimicarter (last accessed July 15, 2014).
The Boards own giving to the Corcoran has been wholly inadequate and is at its lowest point
since 2003. See Ex. H. As the Board has engaged on a determined path of dissolution, its own
giving has dropped precipitously. Moreover, some Trustees have been allowed to make in kind
donations, as opposed to providing cash to a purportedly cash-starved institution. The failure to
fundraise is mystifying, and there must be answers to these questions before any relief is granted.



16

If true, these incidents would strongly suggest that the Trustees own deliberate act[s] ha[ve]
prevented the fulfillment of the trustors purpose. Conn. Coll., 276 F.2d at 497, 107 U.S. App. D.C.
at 251. At the very least, this Court should require further discovery to determine whether cy pres
relief is legally available.
II. THE REQUESTED CY PRES RELIEF IS NOT AT ALL CLOSE TO THE ORIGINAL
TERMS AND PURPOSES OF THE TRUST.
Even if the Trustees could show that the Trust has become impracticable due to
circumstances outside their controlwhich they cannotthey still would not be entitled to cy pres
relief at this time because their proposed plan is not as close as possible to the original terms and
purposes of the Trust and leaves unanswered many essential questions.
The Collection:
The deal documents do not state how much of the Corcorans collection NGA will decide to
cherry-pick. The collection at the Corcoran has 19,000 pieces; NGA may take 100, 500, or 1000. It
may take even lessindeed, no representations whatsoever have been made about which pieces
NGA will take. It is patently clear that, under the proposal, the vast majority of collection will be
dismantled, with anything that NGA does not want disseminated to other institutions, with no
assurance at all that the art remain in Washington, D.C. (While the D.C. Attorney General is entitled
to review any proposal to donate art outside of DC, the reality is that the DC Attorney General has no
effective veto under this arrangement. The D.C. Attorney General cannot force NGA to keep or
display the collection in perpetuity under the terms of the deal. Moreover, the side letter executed by
NGA and the Trustee makes clear that if the Corcoran . . . believes with respect to any particular
work that there are circumstances that would indicate a non-DC institution would be the most
suitable candidate for a particular work, such work need not first be offered to DC institutions. Side
Letter between NGA and Corcoran, at 1.



17

Moreover, the very Trustees who have put in place a plan to dissolve the institution are the
same ones responsible for doling out all of the art that NGA does not take. There is no independent
check, no balance, and no stakeholder participation on what the Trustees will do; it will be open
season on the Corcorans collection. It cannot possibly be consistent with Corcorans intent to
eradicate the collection as a collection and disperse it to the winds. There is no discussion or analysis
of why NGA cannot take the entire collection, given that it receives the tremendous benefit of
receivingfor nothingthe crown jewels of the Corcorans collection.
The proposed plan also will harm the Corcoran collection irreparably. What makes the
collection so magnificent and unique is not its individual components, but their combination as a
whole. Given the breadth and depth of the Corcorans American collection, the Gallery can tell
stories about American artjuxtaposing one artist with another, one style with anotherthat no
other collection can. See Maura Judkis, The Corcoran Gallerys Hidden Gems, June 26, 2014. W.
W. Corcoran understood the power of having such a collection: that is why he dedicated his Trust to
establishing an institutionsingular, not plural. Ever since that time, the Corcoran has focused on
identifying and promoting emerging artists, thereby encouraging American genius. By scattering the
collections components across the country, and by eliminating that focus on emerging artists, the
Trustees will forever deprive the public of a unique opportunity to understand what American art is.
See Mary Anne Goley, Letter to D.C. Attorney General, July 10, 2014. In so doing, they will
fundamentally defeat [Corcorans] intention. Conn. Coll., 276 F.2d at 497, 107 U.S. App. D.C. at
251.
In addition to harming the collection, the proposed plan will run roughshod over the intent of
countless donors who donated their works to the Corcoran under the understanding that that work
would be exhibited by the Corcorannot NGA, and not any other museum in the country.
According to a consulting report commissioned by the Board in 2011, there are over 14,000 pieces in
the collection for which the curators lack . . . knowledge surrounding terms of individual gift



18

agreements. Ex. I. A full 41% of the collection had incomplete or unavailable documentation.
Id. The Trustees cannot elide the basic terms of these donor agreements by substituting how those
restrictions have been understood and performed by Corcoran (Art Accession Agreement, at 2.3)
for what the donor agreements actually require.
Finally, the Trustees aim to break up perhaps the single most important aspect of the
Corcoran Trust: the unique gallery-college combination which directly contributes to American
genius. The proposed deal says precious little about students valued access to the Gallery. But
ultimately students learned far more not just from access to the Gallery, but from having the Gallery
incorporated into their classroom activities, teaching programs, and shows and exhibits. That is
possible only when a single steward guides both Gallery and College.
Because the Trustees proposal would harm the College and collection, and irreversibly
separate Gallery from College, it is antithetical to the Trusts intent. Thus, this Court should deny cy
pres relief until the Trustees can show how the proposal would further the Trusts purposes.
13

The Students:
GWs commitment to the Trusts purposes is similarly thin. Although GW formally commits
to funding the transfer of the Legacy College and the establishment of the GW Corcoran School
(Asset Contribution Agreement, at 7.3; see id. at 4.3), there is no long-term commitment to operating
that school. GW promises to employ Corcoran faculty for only one year. Id. at 7.5 In fact, the only
thing permanent about the new GW Corcoran School will be its name (id. at 7.1 (c)) and
presence (id. at 7.1(d)(i)) in the Flagg Buildingand even those are not truly permanent, for it


13
NGA evidently has no obligation to exhibit any of the Corcoran collection in the Flagg Building: in its sole
discretion it may choose to exhibit only current NGA pieces in that space. Art Accession Agreement, at
2.2(a). And although NGA assumes responsibility for the Legacy Gallery (id. at 2.2(b)), it need not display
those pieces in the Legacy Gallery, but can rotate or even loan them out for display elsewhere (id. at 2.2(c)).
And if GW sells or leases the Flagg Building, then NGA is under no obligation to exhibit the Legacy Art in the
Legacy Gallery. Id. at 2.2(d). This is particularly troubling because the agreement recognizes that the Legacy
Art, by definition, includes works so intrinsically identified with the [Flagg Building] or with the history of the
Gallery that they should remain on exhibit in that building. Id. at 2.2(b). Thus, NGA has little to no
obligation to preserve any connection between the Gallery and the Corcoran collection, as the Trust requires.



19

appears that GW can sell the building (see GW-NGA License Agreement, at 4(b)). For future classes
of GW Corcoran students, GW reserves the right to provide only substantially similar academic
programs (Asset Contribution Agreement, at 7.1(d)(vii)), and it can integrate Corcoran programs
with current arts programs at the University (id. at 7.1(b)) in its sole discretion as soon as the
deal closes. In short, the deal documents suggest that GW could be in full compliance by absorbing
the Corcorans operations, eliminating any distinct Corcoran program within a few years.
Even if the parties had a robust commitment to maintaining the GW Corcoran School and the
NGA Corcoran Gallery of Art, this proposal still would be antithetical to the Trusts purposes. As
the Trustees recognize, the Corcoran Trust was established to create an institutiona school and
gallery combineddedicated to encouraging American genius. See Cy Pres Mem., Ex. 1, at 1.
Yet the current proposal suffocates innovation by gutting the College, destroying the Collection, and
breaking up the singular defining feature of the Corcoranits school-gallery combinationthat
encourages American genius. Moreover, it hands over the Trusts assets to GW even though W. W.
Corcoran was on the board of GWs predecessor and did not leave his Trust to GW. Because the
proposal thus would defeat the intention of the testator, the Court should deny the Trustees request
for relief. See Conn. Coll., 276 F.2d at 497, 107 U.S. App. D.C. at 251; Beland, 735 N.E.2d at 1252;
Fisk Univ., 2007 WL 4913166, at *9.
What make the College such an unusually rich place for artistic innovation are its strong
community, its world-class faculty, and its exhibition opportunities that encourage students to be
bold. The proposed plan will eliminate all three of these critical featuresto the detriment of
students and American genius, as the Intervenor Plaintiffs declarations show. GW can open up
Corcoran classes to GW students, thereby diluting the strength of the Corcoran community. See
Cardim Decl. 14; Gupta Decl. 5. Moreover, GW has not transferred anywhere near the full 200
Corcoran faculty membersmeaning that Corcoran students will now be taught by those professors
selected by GW (pursuant to whatever rigid academic standards GW chooses to apply), rather than



20

by the rich collection of practicing artists that make up the Corcorans faculty. See, e.g., Lacey Decl.
19. Nor is there any guarantee that students will be able to exhibit their work in the Gallery:
instead, to exhibit their art, they will need to make it conform to GWs expectations. See id. 11;
Cardim Decl. 14; Gupta Decl. 5. Given the above questions and no evidence that the proposed
plan will actually accomplish the goals the Trustees claim, cy pres relief is inappropriate.
III. THIS COURT SHOULD HOLD AN EVIDENTIARY HEARING.
For these reasons, this Court should do what every other court faced with this situation has
done and deny cy pres relief until an evidentiary hearing can equips the Court with the factual
materials needed to evaluate the Trustees extraordinary request. For that hearing, this Court should
require the Trustees to provide the essential financial information outlined above; allow STC to offer
alternative evidence regarding the Corcorans future viability; and examine whether the Trustees
own mismanagement has caused the Corcoran to become impracticable. In the meantime, the
Corcoran has more than enough resources to operate for the next school year. See supra 11.
The Court also should at least hear from Mr. Reynolds and Mr. Podesta, who can assist the
Court in understanding why the Corcoran can and should remain independent. Mr. Reynolds and
Mr. Podesta are uniquely qualified: the Trustees previously asked Mr. Reynolds to chair the
Corcoran Board of Trustees; and Mr. Podesta, a lifetime supporter of the Corcoran, is widely
regarded as one of Washington, D.C.s most respected advisors. See Ex. L. Let them share their
vision for the Corcoran and give this Court an opportunity to consider a viable alternative.
CONCLUSION
For the foregoing reasons, STC respectfully requests that this Court conditionally deny the
Trustees request for cy pres relief until after an evidentiary hearing.





21

Dated: July 14, 2014







/s/ Andrew S. Tulumello
Andrew S. Tulumello, D.C. Bar No. 468351
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C. 20036
Telephone: 202-955-8500
Facsimile: 202-467-0539
atulumello@gibsondunn.com
Counsel for Intervenor Plaintiffs

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
THE TRUSTEES OF THE CORCORAN
GALLERY OF ART,
Petitioners,

v.

Civil Action No. 2014 CA 003745 B
Judge Robert D. Okun
THE DISTRICT OF COLUMBIA,
Respondent.



PROPOSED ORDER DENYING PETITIONERS REQUEST FOR ENTRY OF
PROPOSED ORDER
Petitioners have filed a Motion for Entry of Proposed Order in the above-captioned
proceedings. Intervenor-Plaintiffs Sebastien Arbona, Robin David Bell, Reuben Samuel Breslar,
Carolyn Campbell, Lorenzo Cardim, Avijit Gupta, Caroline Lacey, Patrick Masterson, Jayme
McLellan, Natalie Fulgencio Perez, Thomas Pullin, Elizabeth Punsalan, Linda Crocker
Simmons, and Save The Corcoran (collectively, Save The Corcoran) have filed a
Memorandum of Points and Authorities in Opposition to Petitioners Motion for Entry of
Proposed Order in the above-captioned proceedings.
The Court, having considered the motion, the memorandum of points and authorities in
opposition to that motion, all arguments of counsel, and the record before it, HEREBY
ORDERS AND DECREES:
Petitioners Motion for Entry of Proposed Order is DENIED.





SO ORDERED, this day of , 2014.

Hon. Robert D. Okun
Superior Court of the District of Columbia
Distribution to:
Andrew S. Tulumello (D.C. Bar No. 468351)
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue N.W.
Washington, D.C. 20036
Telephone: (202) 955-8500
Facsimile: (202) 467-0539
Email: atulumello@gibsondunn.com
Charles A. Patrizia (D.C. Bar No. 228999)
Paul Hastings LLP
875 15th Street N.W.
Washington, D.C. 20005
Telephone: (202) 551-1710
Fax: (202) 551-1705
Email: charlespatrizia@paulhastings.com
David S. Julyan (D.C. Bar No. 495153)
Julyan and Julyan
1100 G Street N.W.; Suite 655
Washington, D.C. 20005
Telephone: (202) 367-0800
Email: julandjul@aol.com
Bennett Rushkoff
Chief, Public Advocacy Section
D.C. Office of the Attorney General
One Judiciary Square
441 4th Street N.W.; Suite 600 South
Washington, D.C. 20001
Telephone: (202) 727-5173
Fax: (202) 741-0599
Email: Bennett.Rushkoff@dc.gov






CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2014, a copy of the foregoing Memorandum of Points
and Authorities in Opposition to Petitioners Motion for Entry of Proposed Order was sent via
the Courts electronic filing system to:


Charles A. Patrizia
Paul Hastings LLP
875 15 St., NW
Washington, D.C. 20005
charlespatrizia@paulhastings.com
(202) 551-1705


Bennett Rushkoff
Chief, Public Advocacy Section
D.C. Office of the Attorney General
441 4th St., NW, Suite 600 South
Washington, D.C. 20001
Bennett.Rushkoff@dc.gov
(202) 727-5173



/s/ Andrew S. Tulumello
Andrew S. Tulumello